August 20, 2012
Federal Workers Compensation Laws
Summary: The United States Longshore and Harbor Workers Compensation Act (L&HWCA), 33 USCA 901-952, was enacted into law in 1927, 16 years after the first state workers compensation law was passed. The federal act was designed to provide the benefit of workers compensation to employees (other than seamen) who work in maritime employment upon the navigable waters of the United States and who are usually considered outside the scope of state compensation laws. Even so, the purpose of this federal compensation law is no different than that of a state compensation law; namely, to compensate workers for injuries that affect their wage earning capabilities and that arise out of the workers' employment.
The Jones Act (46 USCA 688) is a federal statute, the Merchant Marine Act of 1920, that provides that a seaman injured in the course of his employment by the negligence of the owner, master, or fellow crew member can recover damages for his injuries. The act states that any seaman who suffers injury in the course of his employment may maintain an action for damages directly against the owners of the ship, and in the case of death, the seaman's personal representative can maintain an action for wrongful death. Jurisdiction in such actions is under the court of the district in which the defendant employer resides or in which the principal office is located.
This article offers a discussion of these two federal workers compensation laws.
Coverage under the Longshore and Harbor Workers Act
The coverage of the L&HWCA applies to compensation for disability or death of an employee if the disability or death results from injury occurring upon the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, marine railway, or other adjoining area customarily used in the loading, unloading, repairing, dismantling, or building of a vessel.
One of the original problems that arose with the L&HWCA was that anyone performing work however remotely connected to maritime employment attempted to obtain the benefits of the act. Therefore, in order to curb the jurisdictional scope of the act, not only does the coverage paragraph of the L&HWCA contain certain exclusions, but the definition of “employee” is limited to specific classes of workers.
The L&HWCA does not apply to an officer or employee of the US government, any state or foreign government, or any city or county government; it also does not apply to an employee who is injured solely due to his own intoxication or due to his or a fellow employee's willful intention. The term “employee” means any person engaged in maritime employment, but this term does not include clerical, secretarial, security, or data processing work; it does not include individuals employed by a camp, marina, restaurant, recreational operation, or retail outlet; it does not include individuals who are employed by suppliers, transporters, or vendors temporarily doing business on a maritime premises; nor does it include aquaculture workers, or individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection with the repair of such vessel. Masters or members of a crew of any vessel or any person engaged to load or unload or repair any small vessel under 18 tons net are also not considered employees under the longshore act.
Needless to say, disputes and legal challenges over the definition of “employee” continue. The current judicial mood seems to be to decide each case on a case-by-case basis based on its own circumstances.
For example, in Levins v. Benefits Review Board, 724 F.2d 4 (1st Cir. 1984) a federal court stated that “it is the employee's actual duties rather than a formal job classification that must be looked at in determining coverage”. This was a case where a book clerk worked in the office, but also was required to work as a runner on the pier whenever ships under 300 tons were loaded or unloaded. The clerk was injured while working outside the office and sought benefits under the L&HWCA; the federal circuit court agreed with the clerk that he was a covered employee.
Similarly, an administrative law judge decided that a claimant's duties as a night dispatcher constituted maritime employment within coverage of the L&HWCA. In Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific Maritime Association and Insurance Company of North America, 22 BRBS 434 (1989), it was held that since one of the claimant's duties was to deliver dispatch slips to foremen aboard vessels and to insure that work crews were fully manned, that claimant was a covered employee.
On the other hand, there are examples where courts held that an injured worker was not entitled to coverage under the L&HWCA.
In Daul v. Petroleum Communications, Inc., 196 F.3d 611 (5th Cir. 1999), the court of appeals upheld the finding that a communications consultant (Daul) injured in a fall on a barge was barred from coverage under the L&HWCA. Daul was employed to provide cellular telephone service to users in the Gulf of Mexico, and his stated duties were: to maintain customer relations, call on customers, transport new equipment to customers, and to pick up broken or defective equipment. Daul was accompanying a technician from the communications company to install equipment on a barge docked in a canal. Daul was descending steps on the barge, carrying a desk phone, when he slipped and fell, allegedly because of slippery food material on the stairs. Daul filed a claim for benefits under the Longshore Act, but the claim was denied because Daul was found to be temporarily doing business on the premises, business that consisted of selling his employer's product. Daul was not entitled to coverage under the L&HWCA just because he suffered an injury while upon navigable waters.
In a case from the Ninth Circuit, a worker injured while working as a pile driver on a structure used for processing oil received from offshore wells was also denied coverage under the L&HWCA. The case is McGray Construction Company v. Director, Office of Workers Compensation Programs and Harry Hurston, 181 F.3d 1008 (9th Cir. 1999). Here, Hurston was working as a pile driver when a load fell from a crane and seriously injured him. His employer, McGray Construction, paid workers compensation benefits to Hurston, but he claimed that he was entitled to benefits under the L&HWCA. The original finding was that Hurston was entitled to the benefits; the employer appealed.
The appeals court noted that in order to be covered by the L&HWCA, a person must be an employee as defined in the act. The court said that there are two tests that a person must pass to fit the definition: a situs test and a status test, both of which are independent of each other. There was no question that Hurston met the situs requirement; the place where he was injured was found to be an adjoining pier, which is listed in the act as a covered premises. However, Hurston did not meet the status test because his job was not maritime employment. Hurston was hired for pile driving which was pier construction and not ship construction. The court emphasized that Hurston's work was in no way longshoreman's or shipbuilder's work or anything like those categories. The court upheld the idea that the crucial factor is the nature of the activity to which a worker may be assigned; Hurston's work in this instance was clearly non-maritime in nature.
The Ninth Circuit Court of Appeals in Healy Tibbitts Builders, Inc. v. Director, Office of Workers Compensation Programs, 444 F.3d 1095 (2006), held that the L&HWCA bars coverage for workers constructing a marine facility that does not accommodate ships.
In these examples, the deciding element was upholding the purpose of the L&HWCA, that is, to compensate workers for injuries suffered in maritime employment related injuries. The question remains, though, as to just what maritime employment is, and these cases show that no one, iron clad, unanimous opinion exists.
Section 904 of the longshore compensation act states that every employer is liable for and shall secure the payment to his employees of the compensation payable under the requirements of the act. Incidentally, in the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment. (For a general discussion of the compensation liability of principals, contractors, and subcontractors, see Compensation Liability of Principals and Contractors).
This liability of the employer is exclusive and precludes all other liability of the employer to the employee, his legal representative, or his dependents; in other words, the exclusive remedy theory as applied to the employer. (For information on the exclusive remedy doctrine, see Workers Compensation and Exclusive Remedy). Of course, if the employer fails to secure payment of compensation, an injured employee can file suit at law or in admiralty for damages and the employer cannot use the defenses that were common prior to the enactment of workers compensation (WC) laws: negligence of a fellow servant, the assumption of risk by the employee, or contributory negligence on the part of the employee.
Furthermore, if a responsible employer fails to secure the compensation required under the L&HWCA, he can be fined up to $10,000 or be sentenced to not more than one year imprisonment. This same punishment is meted out if the employer attempts to avoid the payment of compensation by transferring, selling, or concealing any property belonging to the employer.
So, any employer that does not fulfill his obligations under the L&HWCA faces not only the clear probability of a lawsuit filed by the injured employee, but also a statutory punishment.
Now, the liability of the employer may be exclusive, but there may be a question of just who is the employer. For example, a case from Washington shows that an employer that uses borrowed employees is, in effect, the employer for compensation purposes under the L&HWCA; the case is Rodriguez v. Barge Foss, 1998 WL 1110351 (W.D. Wash.).
In this case, Rodriguez was a temporary worker with Barrett Business Services, Inc. and was sent by Barrett to work for Northland. Rodriguez was injured when a forklift, operated by a Northland employee, placed a shipping container on his foot. Rodriguez received compensation under the L&HWCA but then filed a lawsuit against Northland based on tort liability. Northland, seeking summary judgment, said that Rodriguez was a borrowed employee and that the borrowed employee doctrine creates a defense to third party liability lawsuits under the L&HWCA; Rodriguez argued that the act does not allow a borrowed employee defense against tort liability. The court agreed with Northland.
The district court noted that the Ninth Circuit had not expressly accepted or rejected the borrowed employee doctrine as a defense to third party liability claims under the L&HWCA; however, since other circuits (Fifth and Third) had recognized the doctrine, this court would do so likewise. The court said that the act itself did not preclude the use of the doctrine as a defense and the evidence in the case showed that Rodriguez was definitely a borrowed employee at the time of the accident; therefore, Northland was entitled to summary judgment as a matter of law.
Incidentally, for more information on leased or borrowed employees and their relationship, see Leased Employees.
Having a party other than the employer involved in the injury of an employee is not a unique occurrence. The L&HWCA takes that into account whether the injury is caused by a person or a vessel. In the event of injury to an employee covered under the L&HWCA caused by the negligence of a vessel, the employee can bring an action against that vessel (an in rem action alleging negligence against the vessel owner) as a third party. Should that happen, the employer is not liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. Therefore, hold harmless agreements and third-party-over actions are precluded by the L&HWCA.
It should be noted that the third party liability of vessels is the subject of section 905 (b) of the L&HWCA. Section 933 of the act applies to compensation for injuries in which third persons are liable. An injured employee can file suit or a claim against a third person who is liable for the injuries. However, should the employee accept compensation from the employer under an award in an order filed by an administrative law judge, that operates as an assignment to the employer of all rights of the employee to recover damages against the third person. The employer then has 90 days after the assignment to bring an action against the third person; if he fails to do so, the right reverts to the employee.
The L&HWCA lists levels of compensation for disability or death under various sections. For example, the maximum rate of compensation of weekly benefits cannot exceed an amount equal to 200 per cent of the applicable national average weekly wage as determined by the Secretary of Labor. Also, compensation for loss of hearing in one ear is 52 weeks' pay; for loss of hearing in both ears, 200 weeks. The “proper and equitable” compensation for serious disfigurement of the face, neck, or head cannot exceed $7,500. Reasonable funeral expenses are not to exceed $3,000.
Longshore and harbor workers compensation act insurance may be provided by attaching endorsement WC 00 00 00 A A to the standard workers compensation and employers liability insurance policy. The endorsement applies to work done in the states scheduled (including those states with a monopolistic state fund) and extends the definition of workers compensation law to include the L&HWCA. The statutory obligation of an employer to furnish benefits required by the L&HWCA is thus satisfied. The coverage, exclusions, and conditions of part one of the WC policy are applied to those parties involved under the L&HWCA. (See Workers Compensation and Employers Liability Policy for a more thorough discussion of the WC policy).
Under part two of the WC policy, employers liability insurance, the insurance applies to bodily injury by accident or by disease arising out of and in the course of the injured employee's employment; this is made applicable to those covered by the L&HWCA by use of endorsement WC 00 00 00 A. For operations subject to the L&HWCA, the standard limits of liability under part two of the policy are: $100,000 per each accident for bodily injury by accident; $100,000 per each employee for bodily injury by disease; and a $500,000 policy limit for bodily injury by disease. Increased limits are, of course, available for an additional premium.
The coverage, most of the exclusions, and conditions of the employers liability insurance are applicable to those parties covered by the L&HWCA. Now, since such insurance pays for damages for which the insured may become liable to a third party based on a third-party-over action, a question may arise. The L&HWCA precludes third-party-over actions, but the insurance policy of the insured has an insuring agreement that states that any liability damages based on such actions will be paid. Is there a contradiction present? No, because the insuring agreement on the WC policy declares that the damages will be paid where recovery is permitted by law. Since the law (the L&HWCA) does not permit third-party-over actions against the employer (the insured), the issue is moot.
Based on the nature of the work involved, with accidents and injuries happening on land as well as on or over water, conflicts may arise over which coverage takes precedence: state or federal. For example, in Logan v. Louisiana Dock Company, 541 So. 2d 182 (La. App. 1989), Logan, the employee, was injured while repairing a barge on the defendant's dry dock. He filed for workers compensation and sued to obtain benefits; Louisiana Dry Dock responded that Logan could have sought benefits under the L&HWCA and so, he was not eligible for state workers compensation. A Louisiana court of appeals decided that just because there is a federal remedy, that does not necessarily mean there is no state remedy. The court, in finding for Logan , held that the L&HWCA does not expressly say that it is the exclusive remedy for injured workers; the proper approach is for state WC laws to complement the federal law.
Of course, it should be noted that this case was superseded by statute when the Louisiana legislature made it a law that no compensation would be payable under the state workers comp law to an employee who is covered under the Longshore Act. This fact was mentioned in Dempster v. Avondale Shipyards, Inc., 643 So. 2d 1316 (1994) wherein the Court of Appeal of Louisiana, Fifth Circuit said that Act Number 454 effectively eliminated the workers' choice of federal or state compensation in Louisiana.
And see the case of Martin v. Combine Quality Oilfield Services, 741 So. 2d 685 (La. App. 3 Cir. 1999) for a judicial backup to this law. The court of appeals in that case said that the clear intent of the law was that an injured worker entitled to compensation under the L&HWCA would be prohibited from claiming benefits also under the state WC law.
Nevertheless, the L&HWCA itself does not specifically prohibit recovery from both the L&HWCA and a state's WC system. Indeed, the US Supreme Court has decreed that state workers compensation laws and the L&HWCA are not mutually exclusive remedies and has, in effect, sanctioned the filing of a claim by longshoremen under both the federal law and the state law. In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) and in Herb's Welding, Inc. v. Gray, 105 S.Ct. 1421 (1985), the Supreme Court held that the L&HWCA supplements rather than replaces the state workers compensation law and that concurrent jurisdiction exists for land based maritime injuries. And in Pacific Operators Offshore, LLP. v. Valladolid, 132 S.Ct. 680 (2012), the Court noted that there was no indication in the L&HWCA that Congress intended to exclude workers who are eligible for state benefits from L&HWCA coverage.
It should be noted that amendments to the L&HWCA do require that a worker or dependent who is excluded from the definition of “employee” must first claim compensation under the appropriate state WC program and receive a final decision on the merits of that claim before any claim may be filed under the longshore and harbor workers compensation act. And, of course, states can follow the example of Louisiana and prohibit recovery under the state's WC system if the injured person has already received benefits under the federal L&HWCA; but, the federal law does not take that course.
Since the Jones act deals with the recovery for injury to or death of a “seaman”, that term needs to be examined. Lacking a concrete definition in the act itself, courts have established through judicial decisions certain factors that need to be met if a claimant is to be considered a seaman. Some of these factors are: the vessel on which the claimant is employed must be in navigable waters; the claimant must have a more or less permanent connection with the vessel, like performing a substantial part of his work on the vessel; and the claimant must be aboard to aid in the navigation of the vessel, like in the actual operation or maintenance of the vessel.
The U.S. Supreme Court attempted to clarify this somewhat in a 1995 case. In Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995) the Supreme Court said that a “seaman” must contribute to the function of the vessel or to the accomplishment of its mission, and that his or her connection to a vessel must be substantial in both duration and nature (the purpose of the substantial connection requirement is to separate the sea-based maritime employees from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore, whose employment does not regularly expose them to the perils of the sea). The Court added that as a rule of thumb, a “seaman” should spend more than 30% of his or her time on the vessel. And, in a follow up case—Harbor Tug and Barge Company v. Papai, 520 U.S. 548 (1997)—the Supreme Court attempted to further emphasize its stance by noting the two part test to determine seaman status: an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.
Courts now use these two points to decide the seaman status issue on a case by case basis, as the following cases show.
In Hufnagel v. Omega Service Industries, Inc. 182 F.3d 340 (5th Cir. 1999), an employee of an oil platform repair corporation brought a claim under the Jones Act for injuries he suffered while repairing a piling on a fixed oil drilling platform. Hufnagel had been hired to repair pilings located on an oil drilling platform off the cost of Louisiana. He ate and slept on a vessel (not owned or rented by Hufnagle's company) that was used by the repair workers as a temporary hotel while working on the oil platform. Hufnagel was struck in the face by a chain while working and, in his claim for compensation, said that he was a crew member of the vessel and was entitled to Jones Act compensation.
The federal district court concluded that Hufnagle was not a seaman. His work did not contribute to the function of the vessel or to the accomplishment of its mission, and he did not have a connection to a vessel in navigation that was substantial in terms of both its duration and its nature. The court said that whether a worker is a seaman and thus can bring a Jones Act action is determined by the worker's entire employment-related connection to a vessel, and not by the immediate circumstances or location of the worker's injury. Furthermore, the court went on, a fixed oil drilling platform was legally a man-made island and not a vessel. The undisputed evidence showed that as a matter of law, Hufnagel was primarily a land-based employee and not a Jones Act seaman.
In St. Romain v. Industrial Fabrication and Repair Service, Inc., 203 F.3d 376 (5th Cir. 2000), a claimant who was injured while working as a plug and abandon helper sued for damages under the Jones Act. This injury occurred on an offshore platform that was permanently affixed to the outer continental shelf off the coast of Louisiana. St. Romain was employed as a plug and abandon helper which involved the decommissioning of oil wells under offshore platforms. St. Romain was assisting in the removal of casing when a spreader bar used to lift the pipe failed and a shackle and sling struck him; he claimed status as a seaman under the Jones Act.
The court said that the determination whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact. Applying the two part test the Supreme Court announced in the Papai case, the district court decided that St. Romain was not permanently assigned to any one vessel in navigation. He may have been exposed to the perils of the sea that are faced by traditional seamen, but this was not determinative of the issue of his status. As a matter of law, St. Romain's claim for seaman status failed.
In Joseph v. Marine Management Contractors, Inc., 2007 WL 1964527, the United States District Court for the Southern District of Texas, handled a claim for Jones Act benefits wherein Joseph was injured while working as a galley hand on board a ship; he worked there for approximately eight months. The court noted that the Jones Act provides a cause of action in negligence for any seaman who shall suffer personal injury in the course of his employment. Using the two-part test enunciated by the Supreme Court, the District Court said that a maritime worker's connection to the vessel through his duties must be sea-based, not land-based; mere association with a vessel while assigned to a sea-based job is inadequate.
In this instance, Joseph was found to have employment of a substantial sea-based nature. He worked all of his time aboard the vessel in navigation, exposed to the perils of the sea. Joseph at no time performed any land-based work. He spent one-hundred percent of his work time in service to the vessel. He worked at sea up to eighty-four hours per week and had duties relating to the maintenance, custody, or operation of the vessel. Joseph was entitled to coverage under the Jones Act.
On the other hand, see Brown v. Trinity Catering, Inc., 2007 WL 4365384. In this case, the United States District Court for the Eastern District of Louisiana was faced with a similar situation—a galley hand was injured on the job just like in the Joseph case. Brown was employed as a galley hand on a vessel; however, he worked only two hitches of nine days each aboard ship, a total of eighteen days on a vessel in navigation. This brevity of sea-based employment by Brown led the court to rule that he had not shown the necessary connection of substantial duration to a vessel sufficient to establish Jones Act seaman status as defined by the Supreme Court.
Finally, here is a case from the Fifth Circuit Court of Appeals. In Endeavor Marine, Inc. v. Crane Operators, Inc., 234 F.3d 287 (2001), the Court of Appeals reviewed an appeal from a summary judgment that presented a question of seaman status under the Jones Act. Baye was struck by a mooring line while working aboard the FRANK L, a floating crane barge. The accident occurred in the Mississippi River while a tug boat was pushing the FRANK L alongside a cargo vessel. Baye was standing near the head of the FRANK L waiting for the barge to be positioned alongside the cargo vessel so he could pass a mooring line to the deck hands aboard the cargo vessel.
After receiving benefits under the L&HWCA, Baye sought recovery under the Jones Act. The District Court ruled that Baye, a stevedore who operated a crane to load and unload cargo was not a Jones Act seaman. The Circuit Court said that, in keeping with the Supreme Court's two-prong test, Baye did contribute to the function of the vessel and it was undisputed that the Baye's connection to the FRANK L was substantial in duration, given that he spent almost all of his time working on the vessel in the eighteen months prior to the accident. The fact that the vessel did not take Baye to sea was not determinative; in the course of his employment, Baye was regularly exposed to the perils of the sea. The Court ruled that Baye was a Jones Act seaman as a matter of law.
Seamen are subject to admiralty law and, if injured, have the right to file claims for damages in admiralty courts where the proceeding is in the nature of a liability suit against the employer based on the negligence of the employer. The Jones Act allows for the providing of insurance for such liability through the use of the standard workers compensation and employers liability policy (WC policy) and endorsements. There are two programs available to furnish such insurance.
Under program I, the WC policy has endorsement WC 00 02, the maritime coverage endorsement, attached to it. This endorsement does not pertain to the workers compensation part of the WC policy; WC 00 02 states that the insurance afforded by the employers liability insurance part of the WC policy for bodily injury to a master or member of the crew of a vessel is changed by the provisions of the endorsement. The endorsement applies the insurance to bodily injury by accident or by disease arising out of and in the course of the injured employee's employment that is described in the schedule on WC 00 02 The bodily injury must occur in the territorial limits of, or in the operation of a vessel sailing directly between the ports of, the United States of America or Canada.
The employers liability insurance part of the WC policy has several exclusions that are discussed in more detail in other pages; see Workers Compensation and Employers Liability Policy. These exclusions, for the most part, do apply to any claims made by seamen against the insured, and endorsement WC 00 02 adds two more exclusions. These two exclusions deal with items that are peculiar to maritime coverage insurance.
The first exclusion applies to bodily injury covered by a protection and indemnity (P&I) policy issued to the named insured. P&I coverage is an ocean marine form that provides legal liability coverage for marine exposures. For example, if a third party is injured in a collision with the insured's vessel, the P&I policy will respond to a claim. The exclusion on endorsement WC 00 02 aims to prevent any injured party from an attempt to stack coverages since the endorsement does apply to bodily injury by accident.
The second exclusion states that the insurance does not cover the named insured's duty to provide transportation, wages, maintenance, and cure. These items are considered historical rights (the common law maritime right to maintenance and cure) given to sailors, and can today be an element in the contract of hire (for example, the maintenance rate per day can be subject to collective bargaining agreements). A sailor who falls sick in the service of the vessel has historically been entitled to wages, transportation back home, food and quarters to the end of the voyage, and medical attention and other similar services. The exclusion on WC 00 02 makes the point that the insurer simply does not wish to substitute itself for the insured in fulfilling an ancient common law of the sea. However, it needs to be noted that the insurer will drop this exclusion if the insured wants the coverage and will pay an additional premium.
Endorsement WC 00 02 does limit the damages paid for bodily injury by accident and by disease; bodily injury by accident is on an each accident basis and injury by disease is on an aggregate basis. Both items have the limits of liability scheduled on the endorsement and the insurer states clearly that it will not pay any claims after the applicable limits have been reached.
Under program II, the same coverage as program I is offered along with the addition of voluntary compensation. The insurer agrees under this program to offer a settlement of a claim voluntarily in accordance with the statutory benefits called for by the workers compensation law of the state(s) specified on the voluntary compensation endorsement, WC 00 02. If the offer of a settlement is rejected, employers liability then will apply to such a claim or suit.
Endorsement WC 00 02 applies insurance to bodily injury by accident or by disease sustained by an employee who is a master or member of the crew of a vessel described in the schedule. The bodily injury must occur in employment that is necessary or incidental to work scheduled on the endorsement.
The insurance provided by the endorsement does not cover any obligation imposed by a workers compensation law or bodily injury intentionally caused by the named insured. Furthermore, before any benefits are paid, the persons entitled to them must sign a release, transfer to the insurer all rights of recovery, and cooperate with the insurer in enforcing the right to recover from others. If the persons entitled to the benefits fail to do these things, then the duty of the insurer to pay ends at once.
The Jones Act provides that jurisdiction over actions for personal injuries is in a court of the district where the defendant employer resides or where the principal office is located. The maritime coverage endorsement (WC 00 02) states that if the insured is sued, the original suit must be brought in the US or Canada . Based on these phrases, a question may arise: should an injured seaman file a lawsuit based on the Jones Act in a state court or a federal court? The Jones Act is, after all, a federal law; at the same time, insurance coverage under the Jones Act can be provided by a policy used to comply with state workers compensation requirements.
Court decisions through the years have supported the proposition that federal and state courts have concurrent jurisdiction to enforce the right of action established by the Jones Act. However, since the act is a federal law, federal principles of law and rules of construction prevail if a conflict arises with a state law. For example, if an injured seaman files an action under the Jones Act in a state court, that court must use federal rules on the introduction and use of evidence regardless of the state regulations that exist. So a seaman has his choice of courts should he feel the need to file a lawsuit against his employer.
Concurrent jurisdiction is accepted, but what about dual recovery? Can an injured seaman accept recovery under both the Jones Act and a state workers compensation law? A federal court decided that a WC action is not precluded under the Jones Act under certain circumstances. The court, in Dominick v. Houtech Inland Well Service, Inc. 718 F. Supp. 489 (E.D. La. 1989), indicated that since the state supreme court had ruled that insurance carried by the employer was to be considered insurance for state WC purposes regardless of the fact that it may have been purchased by the employer as insurance for Jones Act claims, a workers compensation claim was maintainable. Thus, the injured seaman had two avenues for recovery for his claim open to him.
There are at least two points to remember, however, on this subject.
As noted above under the discussion of the L&HWCA, the Louisiana legislature passed a law during the 1990s that provided that no workers compensation is payable in respect to the disability or death of any employee covered by the L&HWCA; this statute was extended to include the Jones Act. Therefore, if a worker is covered under the terms of the Jones Act and recovers compensation under that act, Louisiana state law would not allow workers compensation to also be paid to the worker. Workers compensation is, after all, a state function and not a federal one, so states may prohibit dual recovery even if the federal law does not do so.
If state law is silent on the matter, the injured worker may have dual recovery because the federal law does not prohibit it. However, historically, courts have allowed offsets for concurrent awards. So if a seaman receives compensation under the Jones Act for his injury, and then files a state workers compensation claim based on that same injury (or vice versa), a court may very well allow the WC action as permitted by state law, but will usually offset any award by the amount already received. Thus, the possibility of double recovery being an unlimited source of compensation is remote.
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